Noting the judicial observations while implementing UCC in Uttarakhand
The debate relating to the implementation of Uniform Civil Code [‘UCC’] in India has been going on since the inception of India. Seveal parties who have formed a union government at center have discussed UCC and but refrained from implementing it due to a variety of reasons relating to vote bank politics. However, this discussion has reemerged as the current ruling party at the center and in several states has adopted the approach of implementing UCC slowly in different states instead of together pan-India. The Union Territory of Goa already as the Goa Civil Code which is not very uniform in nature. Now, the Uttarakhand Government has also created an expert panel to examine the possibility of implementing UCC in the State. At the same time, political parties in Himachal Pradesh and Uttar Pradesh are also promising to introduce the UCC if elected in the upcoming elections. This article aims to analyze this new wave of UCC implementation while keeping in mind the observations made by the Supreme Court relating to the implementation of the UCC in the case of Sarla Mudgal v. Union of India [‘Sarla Mudgal Case’].
The main issue with UCC
Article 44 of the Constitution of India states that the State shall put in effort to secure a UCC for its citizens. At the same time, Article 25 of the Constitution of India states all persons in India are entitled to profess, practice and propagate religion. However, just like all other fundamental rights, it is a qualified right and subject to certain reasonable restrictions as per Article 25(2) to ensure that public order, morality and health is maintained. This creates a contradiction between Article 44 and Article 25 of the Constitution of India as a Uniform Civil Code curtails the right to practice, profess and propagate religion significantly as it restricts several practices and customs of different faiths and religions such as the practices of polygamy of Muslims and the custom of Christians to solemnizes marriages only between 6am and 7pm, which is also mandated as per Section 10 of the Christian Marriage Act.
Discussion of UCC in the Sarla Mudgal case
The contradiction between Article 25 and 44 was also brought up in the Sarla Mudgal case and Justice Kuldip Singh relied upon the jurisprudence of United States to hint that the practice of polygamy is injurious to public morals even though it may be permitted in certain religions. However, in the concurrent judgement of this case, even though Justice RM Sahai agreed that there is an urgent need to implement the UCC, he emphasised that the UCC must be implemented slowly, with caution and after taking steps to protect the right of minorities to profess, practice and propagate religion. It could be seen that Justice RM Sahai disagreed with Justice Kuldip Singh on the point whether or not polygamy is injurious morals as he stated “Some of these practices observed by members of one religion may appear to be excessive and even violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play”. It was further suggested by him that the Law Commission of India should work along with the Minorities Commission to make the necessary changes in law to protect rights of women. In pursuance of the same, the Law Commission of India [“LCI”] published a consultation paper which is discussed later in the piece. Justice RM Sahai also suggested to enact a Conversion of Religion Act which would work to stop the abuse of religion conversion as was the issue in the Sarla Mudgal case.
Application of Sarla Mudgal in Uttarakhand
One way of implementing the UCC in Uttarakhand and making sure that it is congruence with Article 25 would be by following the suggestions of Justice R.M. Sahai and making the “Uniform” Civil Code not completely uniform. What is meant by this is that the UCC could follow an approach which is similar to that of the Goa Civil Code. The UCC could have certain exceptions for certain religious communities and these exceptions could be decided after discussing the same with the public along with the LCI and the Minorities Commission. The same was also taken up by the LCI and it was suggested by them in their 2018 consultation paper on reform of family law that all the personal laws can be amended to ensure that the rights of women protected and they are treated equal to men in marriage, divorce, succession and other aspects of personal law. Once the same is done, then the UCC can be introduced to create uniformity. Now given that the main argument to implement the UCC is to protect women from being exploited and discriminated against. Once the suggestions of the LCI given in the above mentioned consultation paper are implemented, there would be amendments which would empower women and provide remedies in cases of exploitation and discrimination. Hence, the question of Article 44 subverting Article 25 would become redundant and there would remain no need to implement the UCC anymore.
Therefore, in a nutshell, if the recommendations given in the Sarla Mudgal judgement are implemented to ensure that Article 25 and Article 44 along with the rights of women are protected, the need of having UCC goes away. However, when UCC will be implemented in Uttarakhand, there is little chance that the observations made by the Court in in the Sarla Mudgal judgement and by the LCI would be even considered. This is because the intention behind implementing the UCC is rooted deep in Islamophobia and not protecting the rights of women. The situation of UCC in Uttarakhand can be compared to what we have seen several times since 2014 in various forms of “Love Jihad” legislations throughout the country, where under the garb of protecting women, the State has used the legislation as a tool to suppress the rights and freedom of India’s minorities which is an obsession of the Hindu Right Wing.